Citation Codes

Equivalent Citations

citation codes

Case Number

Misc. Criminal Application Nos. 1509 of 2007 with Misc. Cr. Application Nos. 1511, 1513, 1515, 1516, 1566, 1569 to 1575, 1635, 1752, 1754, 1867, 1898, 1900, 2026, 2028, 2029, 3025, 3027, 3028 and 3421 all of 2007

Judges

M.R Shah, J.

Acts

sections 66(1)(B), 65(a)(e), 81, and 43 read with section 116(2) of the Bombay Prohibition Act, 1949.
sections 66(B), 65(a)(e), 81 and 43 read with section 116(2) of the Bombay Prohibition Act, 1949.
section 25 of the Evidence Act and also section 161 of the Criminal Procedure Code.
section 25 of the Evidence Act and section 161 of the Criminal Procedure Code,
section 482 of tile Criminal Procedure Code
section 42 of the N.D.P.S Act

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Smart Summary

Structured Summary of the Opinion (M.R. Shah, J.)

Factual and Procedural Background

This group of petitions arises from multiple criminal complaints lodged at different police stations under sections 66(1)(B), 65(a)(e), 81 and 43 read with section 116(2) of the Bombay Prohibition Act, 1949. In a majority of these matters large quantities of English liquor were recovered from persons (typically drivers, cleaners) who were transporting liquor into the State of Gujarat from places outside the State. The arrested persons recorded statements which implicated various other individuals (the present applicants) as suppliers or recipients. Many of the applicants are described as absconding or residing outside Gujarat.

At an initial stage of investigation, the applicants approached the High Court seeking quashing of the complaints and obtained interim stay of further investigation in most cases. The applicants primarily contended that, except for statements of co-accused, there was no material against them and that such statements are inadmissible (relying on section 25 of the Evidence Act and section 161 Cr.P.C.). The State opposed quashing on the ground that the investigation was in an initial stage and that statements of co-accused may form the basis for further investigation.

Legal Issues Presented

Whether complaints should be quashed at the initial stage of investigation where the only material implicating the applicants consists of statements of co-accused.
Whether the Investigating Officer should be restrained from proceeding with investigation when the investigation is at an initial stage and the accused/applicants are alleged to be absconding or reside outside the State.
Whether the inadmissibility of statements of co-accused (referred to sections 25 of the Evidence Act and section 161 Cr.P.C.) requires quashing of complaints at the investigation stage.

Arguments of the Parties

Applicants' Arguments

The only material available against the applicants are statements of co-accused, which are inadmissible in evidence under section 25 of the Evidence Act and section 161 Cr.P.C.; therefore there is no evidence to sustain prosecution.
Because there are only statements of co-accused, there are bleak (described as "blink" in the opinion) chances of conviction and it would be futile to continue proceedings; accordingly the complaints should be quashed.
The applicants relied on earlier decisions of the High Court including New India Assurance Co. Ltd. v. Ketanbhai Bhagvandas Shah, Jinabhai Kalabhai Rajput v. State of Gujarat, and Suresh Chhotalal Verma v. State of Gujarat in support of their submission that statements of co-accused cannot sustain conviction.

State's Arguments

The issue whether prosecution should continue on the basis of statements of co-accused should not be decided at the investigation stage; statements of co-accused can legitimately form the basis for further investigation.
The investigation was at an initial stage and, after investigation is completed, the Investigating Officer may file an appropriate report or charge-sheet; only then should questions about admissibility or sufficiency be considered (at framing of charges or trial).
The State relied heavily on the Supreme Court decision in Mohd. Malek Mondal v. Pranjal Bardalai to support the proposition that the High Court should not quash complaints at the initial stage merely because the only material appears to be retracted/inadmissible statements of co-accused.
It was pointed out that many applicants are absconding or reside outside Gujarat, which is relevant to the need to proceed with investigation rather than stalling it.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
New India Assurance Co. Ltd. v. Ketanbhai Bhagvandas Shah (decision of this Court)	The proposition (as relied upon by applicants) that conviction cannot be based solely on statements of co-accused.	The Court noted the applicants relied on this decision but held it was not applicable to the present petitions because the stage at which that decision operated was different from the present initial-investigation stage.
Jinabhai Kalabhai Rajput v. State of Gujarat (decision of this Court)	A case where conviction occurred solely on the basis of statements of co-accused and there was no other material.	The Court observed that this case arose at the appellate stage (conviction stage) and therefore its facts and stage differ from the present matters; it was not treated as applicable to quash at the investigation stage.
Suresh Chhotalal Verma v. State of Gujarat (decision of this Court)	A case where the accused was discharged after charge-sheet papers showed no material except statements of co-accused (considered at discharge stage).	The Court pointed out that this decision was concerned with discharge after charge-sheet (post-investigation) and thus is not applicable to quashing at the initial stage of investigation.
Mohd. Malek Mondal v. Pranjal Bardalai (Hon'ble Supreme Court)	The principle that a complaint should not be quashed at the initial stage merely because the only material appears to be inadmissible/retracted statements of co-accused; corroborative value and other factual questions are to be examined at an appropriate later stage.	The Court relied upon and applied this Supreme Court decision as directly persuasive: it held that at the initial stage of investigation the High Court ought not to quash complaints and restrain investigation on the ground advanced by applicants.

Court's Reasoning and Analysis

The Court's analysis proceeded by focusing on the procedural stage of the matters. The opinion repeatedly emphasises that the proceedings are at an initial stage of investigation in which:

The Investigating Officer had initiated investigations on the basis of complaints and statements recorded from arrested persons (drivers/cleaners). Those statements implicated other persons (the applicants) as suppliers or recipients of liquor.
The applicants sought quashing of complaints and obtained stays of investigation, arguing that except for statements of co-accused there is no evidence and such statements are inadmissible (relying on section 25 Evidence Act and section 161 Cr.P.C.).
The Court examined the applicants' authorities and distinguished them on the basis of the stage at which those decisions were applied — noting that decisions where conviction or discharge occurred were decided at later stages (appeal or post-charge-sheet discharge).
The Court relied on the Supreme Court's decision in Mohd. Malek Mondal which held that when proceedings are at the initial stage, the High Court should not quash the complaint on the ground that the only material is an allegedly inadmissible retracted statement of co-accused; questions of corroboration and admissibility should be considered at an appropriate later stage.
The Court observed practical features in the present matters: many applicants are absconding or reside outside Gujarat, and investigation had not been completed due to interim stays; accordingly it cannot be concluded, before investigation and interrogation, that no material will emerge against the applicants.
The Court held that statements of co-accused, along with allegations in the complaint, may legitimately be the basis for initiating and furthering investigation; the Investigating Officer has a statutory right to investigate and ought not to be restrained at this stage solely because the material presently appears limited to co-accused statements.
The Court therefore concluded that the applicants' contentions seeking quashing at the investigation stage were premature and must be considered only after investigation is completed and any charge-sheet filed (or at the time of discharge/trial as appropriate).

Holding and Implications

Holding: Petitions Dismissed.

Direct consequences and operational orders contained in the opinion:

The applications to quash the complaints at the investigation stage were dismissed and the Rule (where issued) discharged.
Ad-interim relief previously granted in each petition is vacated forthwith.
The Office is directed to issue writ(s) to the concerned police stations immediately, informing them of the vacating of ad-interim relief so that investigation may proceed.
The Court recorded that if charge-sheets have been filed in some matters, it is open to the applicants to move appropriate applications for discharge, which will be considered according to law on merits.

Broader implications: The Court did not purport to lay down any novel legal principle beyond applying existing authorities (notably the Supreme Court in Mohd. Malek Mondal). The decision confines itself to the procedural conclusion that quashing at the initial stage is not appropriate; no new precedent is articulated beyond the application of the cited authorities.

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Kailash Govindram Rathi And Others v. State Of Gujarat And Another

M.R Shah, J.:— Mr. Adil Mirza, learned Advocate appearing on behalf 01 the applicants in Misc. Criminal Application No. 2026 of 2007 does not press the present application qua the applicant No. 1 and restricts the application for applicant Nos. 2 and 3 only. Permission is accordingly granted.

2. AS common question of law and facts arise in this group of petitions, they are being disposed of by this common judgment and order. In all the cases different criminal complaints are filed with different Police Stations against the respective applicants-original accused for the offences punishable under sections 66(B), 65(a)(e), 81 and 43 read with section 116(2) of the Bombay Prohibition Act, 1949. It is to be noted that by and large in all the cases huge quantity of English liquor has been recovered from the persons who were transporting the same from various places out of State of Gujarat to the State of Gujarat and by and large in all the cases accused who were already arrested are drivers, cleaners etc. At the time of recording the statement and/or filing the complaint itself names of respective applicants are disclosed by the accused who were already arrested and the allegations against the applicants are that either they are the suppliers who have supplied either from Rajasthan and/or out of Gujarat and/or to whom liquor was to be supplied and/or for whom all the accused who were arrested. It is required to be noted that in almost all the cases, respective applicants are wanted and hailing from out of Guajrat. On the basis of the statements of the accused who are already arrested which is recorded hereinabove implicating the applicants, the concerned Investigating Officer of the respective police stations have initiated investigation; and at that initial stage the applicants have approached this Court and in most of the cases they have obtained stay of further investigation mainly on the ground that except the statements of the co-accused there is no evidence and/or material against the respective applicants. Therefore, the statements of the co-accused is inadmissible in evidence more particularly considering section 25 of the Evidence Act and section 161 of the Criminal Procedure Code, and therefore, respective complaints filed against the respective applicants are required to be quashed and set aside.

3. Mr. H.S Mulia, learned Advocate and Mr. Adil Mirza, learned Advocate appearing on behalf of the respective applicants-original accused have vehemently submitted that the statements of the co-accused is inadmissible in evidence as per the provisions of the Evidence Act and there cannot be any conviction on the basis of the statements of the coaccused and in the complaint there is no evidence and/or material against the applicants, therefore, the impugned complainants are required to be quashed and set aside. It is also further submitted that as the statements of the co-accused axe inadmissible in evidence, on the basis of the statements of the co-accused there cannot be any conviction and as there are blink chances of conviction, to continue the criminal proceedings against the applicants by way of criminal complaints would be exercise in futility. Therefore, it is requested to quash the complaints. The learned Advocates appearing on behalf of the respective applicants have relied upon section 25 of the Evidence Act and also section 161 of the Criminal Procedure Code. The learned Advocates appearing on behalf of the respective applicants have relied upon the decision of this Court in the case of New India Assurance Co. Ltd. v. Ketanbhai Bhagvandas Shah,1 decision of this Court in the case of Jinabhai Kalabhai Rajput v. State of Gujarat, and also decision of this Court in the case of Suresh Chhotalal Verma v. State of Gujarat,2 in support of this above submissions and requested to quash the impugned complaints.

4. On the other hand, Mr. R.C Kodekar, learned A.P.P as well as Mr. M.R Mengdey, learned A.P.P appearing on behalf of the State while opposing the present applications have submitted that the question whether on the basis of the statements of the co-accused the criminal proceedings against the petitioners should be continued or not is not required to be considered at this stage as the investigation was at initial stage and at that stage the applicants have approached this Court and have obtained stay of further investigation. It is submitted by them that in fact the statements of the co-accused can be basis for further investigation and after investigation is conducted appropriate report will be submitted by the Investigating Officer and/or charge-sheet will be filed and at that stage if it is found that except the statements of the co-accused there is no further material and/or evidence, the submissions of the applicants are required to be considered and the investigation cannot be stalled at initial stage solely on the' ground that at present there is only the statements of the co-accused. It is also submitted by them that the contention on behalf of the petitioners that there are blink chances of conviction, is also not required to be considered at this stage as the investigation is yet to be carried out and therefore, all these aspects are required to be considered either at the stage of framing of charges and/or filing of appropriate report and/or at the time of trial. It is submitted that there is no material and/or evidence against the applicants cannot be considered at this stage as the investigation is not proceeded further in view of the stay granted by this Court more particularly, when by and large all the applicants are absconding. The learned A.P.Ps have heavily relied upon the decisions of the Hon'ble Supreme Court in the case of Mohd. Malek Mondal v. Pranjal Bardalai . 2005 30 AIC 24 SC wherein the Hon'ble Supreme Court has confirmed the order passed by the High Court declining the prayer to quash the complaint at the initial stage when the submission was made on behalf of the accused that there was no material against them except inadmissible retracted statements allegedly made by the co-accused. Therefore, it is requested to dismiss all the applications at this stage and permit the investigating agency to proceed further with the investigation which is statutory right of the police.

5. Heard the learned Advocates appearing on behalf of the respective parties.

6. At the outset, it is required to be noted that against all the respective applicants, the complaints are filed before the different police stations for the offences punishable under sections 66(1)(B), 65(a)(e), 81, and 43 read with section 116(2) of the Bombay Prohibition Act, 1949. It is also required to be noted that in almost all the cases the accused who were caught are drivers, cleaners etc., transporting English liquor from the places out of Gujarat to the State of Gujarat. It is also required to be noted that there is prohibition in the State of Gujarat. It is also required to be noted that in almost all the cases allegations against the respective applicants on the basis of the statements ofthe persons who are arrested are that the applicants are either suppliers of the liquor and/or liquor was to be supplied to them for the purpose of sell within the State of Guajrat. In almost all the cases, the allegations is that the applicants are absconding and most of them are from out of the State of Gujarat. Now, on basi of the allegations and averments in the complaints, and on the basis of the statements of the co-accused who are arrested, the Investigating Officer started to initiate investigation against the applicants, at that initial stage all the applicants have approached this Court by way of present application for quashing and setting aside the respective complaints against them solely on the ground that except the statements of the co-accused there is no material and/or evidence against them. This Court granted stay of further investigation in almost all the cases. Now, the question which is required to be considered at this stage is whether the investigation is to be commenced and/or proceeded on the basis of the statements of the co-accused and whether the Investigating Officer should be permitted to further investigate the case and/or whether at this stage even before the investigation is concluded respective complaints are required to be quashed.

7. Learned Advocates appearing on behalf of the applicants have relied upon the decision in the case of New India Assurance Co. Ltd. (supra) have submitted that in the aforesaid decision, this Court has taken a view that on the basis of the statements of the co-accused there cannot be any conviction. In one of the cases Jirtabhai Kalabhai Rajput (supra) the accused was convicted and in the case of Suresh Chnotalal Verma (supra), the accused was discharged. Now, it is required to be noted at this stage that in the case of Jirtabhai Kalabhai Rajput (supra) the question came to be considered at the time of appeal and accused was convicted solely on the basis of the statements of the co-accused and it was found that there was no other material and/or evidence against the accused. Now, so far as the case of Suresh Chhotalal Verma (supra) is concerned in that case the question came to be considered at time of discharge after charge-sheet was submitted and it was found considering the charge-sheet papers that except the statements of the co-accused there was no material and/or evidence against the accused and considering the same accused came to be discharged. Thus, the stage at which this Court intervened was the stage at the time of discharge i.e after the investigation was completed and charge-sheet was filed. Under the circumstances both the decisions are not applicable to the facts of the present cases.

8. Identical question came to be considered by the Hon'ble Supreme Court in the case of Mohd. Malek Mondal and the case before the Hon'ble Supreme Court was that an application was submitted under section 482 of tile Criminal Procedure Code to quash the complaint and one of the ground canvassed on behalf of the accused was that there was no material against the petitioners except the inadmissible retracted statement allegedly made by the co-accused. The Hon'ble Supreme Court confirmed the order passed by the High Court refusing to quash the complaint on that ground at the stage of investigation and the Hon'ble Supreme Court has held that the question about corroborative nature of evidence has to be considered at the appropriate stage and the High Court rightly declined the prayer to quash the complaint at the initial stage when only cognizance had taken and the accused was still to be interrogated. Relevant Paragraph No. 6 of the said judgment is reproduced as under:

“6. The proceedings of the complaint are at the initial stage after the cognizance has been taken. The petitioner could not be interrogated since he has been avoiding to appear before the N.C.B officer despite issue of varipus notices as per the averments made in the complaint. The allegations in the complaint are grave. The recovery, according to the prosecution, is of 2.050 kg. of heroin which, accoraing to the statement of Dilip Das, belonged to the petitioner. The question whether section 42 of the N.D.P.S Act has been complied or not being a question of fact has to be gone into on appreciation of evidence that may be adduced before the Special Judge. Prima facie, the High Court has come to the conclusion that there has been compliance. This is not the stage for in-depth examination of this question. The contention that there is no material against the petitioner since the only material on record was inadmissible retracted statement allegedly made by the co-accued Dilip Das, also cannot be accepted, at this stage, when only cognizance has been taken and the petitioner is still to be interrogated. The question about corroborative nature of evidence may also have to be gone into at the appropriate stage. The only other contention urged is about the lack of power of the Special Judge to issue warrant of arrest.”

9. Now, considering the decision of the Hon'ble Supreme Court in the case of Mohd. Malek Mondal (supra) and considering the facts of the present case, stage at which the proceedings are pending i.e at the initial stage of the investigation, the contention on behalf of the respective applicants that the complaints are required to be quashed and set aside on the ground that except statements of the co-accused there is no material and/or evidence against the applicants, cannot be accepted.

10. It is required to be noted that investigation was at the initial stage and the investigation was to be initiated/proceeded further on the basis of the statements of the co-accused and the allegations and averments in the complainants. Before even the investigation is carried out, the applicants have approached this Court and the police officers are restrained from further investigation. It is also required to be noted that in almost all the cases, the applicants are absconding and/or residing outside State of Gujarat. Unless and until the investigation is proceeded further, the respective applicants are interrogated and till the investigation is completed, it cannot be said that there is no material and/or evidence against the applicants. All these things are required to be considered after the investigation is completed and appropriate report and/or charge-sheet is submitted against the applicants, and thereafter, the question is required to be considered whether the applicants are to be prosecuted or not. At the initial stage of investigation, the respective complaints cannot be quashed and set aside solely on the ground that at this stage there are only statements of the co-accued which is inadmissible in evidence. Corroborative nature of evidence during the course of investigation and statements of co-accused can be considered at an appropriate stage. Under the circumstances, at the initial stage complaints cannot be quashed. It cannot be disputed that it is statutory right of the Investigating Officer to investigate the complaints and the offences and the Investigating Officer cannot be restrained from further investigation solely on the ground that at this stage only statements of the co-accused is available. In fact as per this Court statements of the co-accused, allegations and the averments in the complaints to that effect can be the basis for initiation of further investigation.

11. Under the circumstances, the prayer of the applicants at this stage to quash the complaints and stall the investigation at the initial stage cannot be accepted. All those submissions are required to be considered at an appropriate stage and not at the stage of investigation. The submission of the learned Advocates appearing on behalf of the applicant relying upon section 25 of the Evidence Act and section 161 of the Criminal Procedure Code are also not required to be considered at this stage, the same can be considered at an appropriate stage after the investigation is completed and appropriate report/charge-sheet is filed and/or even at the time of tried.

12. It is reported that in some of the cases charge-sheet is filed, however, it is not known whether the charge-sheet have been filed against the applicants and/or accused who were arrested. If the charge-sheet are filed against some of the applicants, in that case, it will be open for the applicants to move an appropriate application for discharge and the same shall be considered in accordance with law and on merits. If the charge-sheet is filed against the co-acccused and not against the applicants, and if it is the contention on behalf of the applicants that from the charge-sheet papers there is no case made out against the applicants and/or there is no material against the applicants, in that case it is required to be noted that so far investigation against the respective applicants is not initiated in view of the stay granted by this Court. After interrogation of the respective applicants there might be some material found which can be the basis for filing appropriate report/charge-sheet. Under the circumstances, even on that ground, investigation is required to be proceeded further against the respective applicants. It will not be open for the applicants to contend that on the basis of the charge-sheet filed against the co-accused there is no material against the applicants and the said submission is required to be considered only after investigation against qua the respective applicants and after interrogating them. For the reasons stated above, all these petitions fail, and are required to be dismissed and accordingly they are dismissed. Rule is discharged in respective petitions. Ad-interim relief granted earlier in each of the petitions are hereby vacated forthwith. Office is directed to issue writ in each of the petitions to the concerned police stations immediately, informing vacating of ad-interim relief.

13. Petitions Dismissed.

Kailash Govindram Rathi And Others v. State Of Gujarat And Another

Structured Summary of the Opinion (M.R. Shah, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicants' Arguments

State's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Kailash Govindram Rathi And Others v. State Of Gujarat And Another

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